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Recognizing the Regulatory Commons: A Theory of Regulatory Gaps

Political economic theories, legal doctrine and political rhetoric frequently assume that overregulation is a pervasive problem requiring remedial measures. Despite the prevalence of these theories, Professor Buzbee demonstrates how a dynamic that he labels the "regulatory commons" problem can create predictable incentives for legislators or regulators to fail to address even broadly perceived social ills. The Article draws on and enriches the "tragedy of the commons" tale, with its usual focus on an underlying common pool resource and conflicts among users of that resource. Professor Buzbee shows how that literature's focus on the underlying resource and multiple resource users neglects incentives for inattention created by the existence of numerous potential regulators.

Where numerous regulators share potential jurisdiction over a regulatory opportunity, and there is a mismatch between those regulators' jurisdictions and the causes and effects of a harmful activity, a regulatory commons dynamic is created. The commons resource here is not the underlying threatened amenity, but the shared regulatory opportunity in a situation of jurisdictional mismatch. Where no regulator has primacy over such a social ill, those seeking a regulatory response will be uncertain where to turn, thereby fragmenting their demands and reducing each regulator's perception of a pressing social need. Potential regulators similarly will find ills encountering a regulatory commons dynamic to be unattractive opportunities for political investment and credit claiming. Regulators are unlikely to be blamed for a problematic status quo, will be unable to control other regulators, and if they choose to act may create ineffective regulation due to others' actions. Furthermore, drawing on public choice scholarship and behavioral law and economics, this Article shows how deviation from the status quo baseline will be especially disfavored in the setting of a dispersed social ills and fragmented regulatory frameworks. Professor Buzbee then reviews prominent overregulation theories, many drawn from public choice scholarship, and shows how such overregulation assumptions are reflected in contemporary administrative law jurisprudence. Propensities to ignore dispersed social ills created by the regulatory commons dynamic can be reconciled with overregulation theories. One can anticipate intermittent and sometimes stringent regulation, often created after events galvanize public perceptions of crisis. Stringent regulation, however, should not be mistaken for comprehensive regulation. The Article closes by discussing implications of the regulatory commons dynamic and offering means to surmount it.